A Supreme Error: How The U.S. Supreme Court Screwed Up Its Dismissal of Texas v. Pennsylvania, et. al.

In the waning hours of December 11, 2020, the United States Supreme Court issued a list order denying Texas leave to file a bill of complaint under its original jurisdiction challenging the results of the 2020 presidential election. The decision dismisses the lawsuit. Although its decision was correct on its substantive merits,1 the Supreme Court made a supreme error.

There is no question that the case garnered an enormous amount of publicity. There is also no question that the justices and their clerks are at least marginally aware of that publicity and the enormous public interest in the outcome of the election. Ordinary circumstances would dictate thorough opinions intended to clearly and plainly articulate the reasoning behind the decision and restore confidence – to whatever degree possible – in the election’s outcome. The Supreme Court, however, failed to do that.

Instead, the Supreme Court issued a brief list order that only spewed legal terms of art without any explanation for them. The average citizen is left wondering just what the Supreme Court was thinking in dismissing the lawsuit. About 45-50% of the country is royally mad right now because they firmly believe that election fraud occurred. They now believe that the Supreme Court screwed the country by denying yet another challenge to the election results.

Grant it, the justices and their clerks work hard, and they don’t have the time or the resources to deal with many worthy cases – let alone frivolous cases like many people consider Texas’ case to be. That’s totally fine if the justices didn’t want to devote substantial time to issuing a lengthy opinion. It, however, does not justify a complete failure to write an explanation in plain English explaining the legal terms of art on a case of this magnitude.

Our country deserves more at this point. Civic responsibility and statesmanship would have weighed in favor of a plain English decision. The lack of one shakes confidence in yet another process of government.

Let’s talk the plain English that the Supreme Court did not. The justices dismissed the case on the following grounds: Texas lacks “standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

Standing is a legal term of art that comes from English common law and the Latin phrase locus standi (“place of standing”). It refers to a party’s ability/right to participate in a case. Since the Supreme Court can only hear cases and controversies under Article III, a party must demonstrate an ability/right to participate in a case. To demonstrate an ability/right to participate in a case, a party ordinarily must demonstrate an injury by the action of another that a court can remedy.

The Supreme Court’s decision is based on the fact that Texas did not suffer an injury based on how Pennsylvania and the other three states that it sued conducted their elections. Again, reasoning as to why would help.

The United States Constitution does not form a national union of individuals. It forms a union of individual states that have what is called sovereignty or supreme power or authority over their own affairs subject to certain limitations for the good of the whole union. The states are the primary actors in our national political system. The Senate and the House of Representatives are filled by delegations of representatives from each state.

Structurally, the U.S. Constitution places the responsibility of electing the President in the hands of the individual states, not the individual voters. States select electors to populate the Electoral College, and then those electors vote for the President. Under Article II, Section 1, Clause 3, each state’s legislature retains complete authority over defining the process by which it selects in electors. Another state has no legal rights to affect how another state chooses its electors. Thus, there is no way that Texas can suffer a legal injury by the process that Pennsylvania or any other state chooses to select its electors.

The result of this analysis is that Texas has no right to even participate in a lawsuit as a party challenging the result of another state’s election.

The Supreme Court properly reached this conclusion, and no justice disagreed with it. It, however, failed to plainly explain its conclusion to the American people. That failure is a supreme error, and it does a great disservice to our nation.

  1. The Supreme Court’s decision is likely not correct as a matter of procedural law. As Justices Alito and Thomas point out, Article III of the Constitution does not grant the Court the power to deny a state permission to file a complaint under the Supreme Court’s original jurisdiction. While common law principles might support such discretionary power, it does not seem consistent with Article III’s text.

Cameron L. Atkinson

Cameron Atkinson is a Christian, a published constitutional scholar, a trial and appellate lawyer, and a general hell-raiser. He has received national recognition for his victories in civil rights cases, especially in First Amendment cases. Attorney Atkinson stands out for his written advocacy, and he has taken the lead role in briefing cases to the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court, the Connecticut Appellate Court, and multiple New York appellate courts. Attorney Atkinson has successfully represented clients facing criminal charges, including successfully arguing for the reversal of a sexual assault conviction before the Connecticut Supreme Court. He will accept requests for public speaking engagements on a case-by-case basis.

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